The UK exited the EU on 31 January 2020, with the transition period ending on 31 December 2020. Given the teething problems of the early years of Brexit, one can only imagine how troubled the adolescence will prove to be and IP is no exception. Prior to Brexit, the UK adhered to the Civil Enforcement Directive 2004/48/EC which was implemented to address the disparities between EC Member States for the enforcement of IP rights. Subsequent attempts to harmonise criminal sanctions across the Member States by way of the proposed Criminal Enforcement Directive (IPRED2) failed, due in part, to the lack of EU aquis communautaire and the fact that the use of criminal sanctions and remedies for IP infringement remains very controversial. The UK was the only European State to have called the aquis into question and it is now about to embark on a creating a pyre of otiose law. However, the Trade and Cooperation Agreement, which came into effect in 2021 (TCA) appears to transpose at least the spirit of the Civil Enforcement Directive and some of the provisions appear to be more prescriptive. The September 2021 Blog considered the effect of Brexit on civil IP damages. This Blog considers the aquis in that context.
It is worth briefly considering the nature of the EU aquis, described as ‘seeming to live a dull and uninteresting life between periods of EU enlargement and it always seems to be one of those immensely important concepts that always finds its way into the headlines of newspapers, magazines, journals and news bulletins, when enlargement is on the agenda’. Joseph Weiller describes the aquis thus: ‘The holiest cow of all has been the preservation of the aquis communautaire and within the aquis, the Holy of Holiest is the Constitutional Framework of the Community.’ The aquis or Community Patrimony, is the body of common rights and obligations which bind all Member States together within the EU. It is a very concrete social structure which automatically confronts new Members of the EU and is something that they have to accept and adapt to. Brexit was the result of the UK having been confronted with the aquis, but never having accepted, or adapted to it. During David Cameron’s tenure as Prime Minister, he wrote an article for the Daily Telegraph, published on 15 March 2014, in which he postulated that ‘I completely understand and share people’s concern about the EU. Our businesses value the Single Market, but find the degree of European interference in our everyday life, excessive. People are worried that Britain is being sucked into a United States of Europe.’
In 2017, the academics Richard Arnold and Lionel Bentley et al considered the legal consequences of Brexit for IP law before the TCA was finalised. They rightly identified that the UK would have to comply with some of the EU aquis since every EU FTA with the rest of the world, comes with a detailed IP chapter, which obliges the other party to comply with some features of EU law even if it secures trade agreements only with third parties, such as Australia or New Zealand, beyond Europe, as third countries are often themselves, bound by bilateral agreements with the EU. Copyright law is harmonised in the EU by nine Directives, which were of direct effect in the UK, prior to Brexit and therefore implemented in the Copyright, Designs and Patents Act 1988 (CDPA 1988). These remained in force until modification, the most urgent, being the references to Member States and another EEA State. The Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/605), passed under the powers of the European Union (Withdrawal) Act 2018, coming into force on 1 January 2021, removed all references to the EU, EEA or Member States in UK copyright legislation and preserved the effect of UK law where possible. Arnold and Bently were right to recommend that if the UK starts to unravel the copyright EU aquis, it would in any case, be wise to revamp the CDPA 1988, now a long and over complicated instrument, a fact noted in my previous September Blog.
The TCA has set out the general principles governing copyright, such as agreement by the parties to affirm their commitment to comply with international treaties such as the TRIPS Agreement, National Treatment, the rights of authors and performers and terms of protection, but given the emergency amendments set out in the 2018 Regulations and the incorporation into the TCA of the provisions of the Enforcement Directive 2004/48/EC, there is scope for confusion relating to the applicable principles of IP protection.
In relation to the enforcement of IP rights, little will change in practice, as the UK and the EU are parties to international IP treaties, such as the TRIPS Agreement. The value and legacy of the case law of the CJEU, which has a defining role in shaping the EU copyright framework, will need to be considered. The legal value of the CJEU case law issued before and after Brexit, will have to be addressed, as it likely that the court will refer to decisions as a guiding principle at least, even if they are not directly applicable to future legal decisions. The case law decided pre-Brexit, may carry greater weight than post Brexit case law, given that it was applicable in the UK, prior to 31 December 2020. Further, as EU Directives have been implemented in the UK via national legislation, the content of those Directives have been analysed through UK case law, embedding it within the common law system.
Whilst he was the Brexit Minister, Lord David Frost delivered a statement to the House of Lords on 16 September 2021, on the future of retained law. He stated that he was going to conduct a review of so called ‘Retained EU Law’, legislation that remained on the UK statute books through the 2018 Withdrawal Act. This was intended to remove the special status of retained EU law, so that it was not a distinct category domestic law, but normalised within the national law, with clear legislative status, so that EU law does not attract undue precedence and the UK courts will be able to fully depart from it. A new, Standing Commission is to be set up, in order to receive ideas from any British citizen on how to repeal or improve regulation. The challenge here, is to redraft the CDPA 1988, so that European IP law is replaced with legislation that remains compatible with the TCA. However, the very fact that such legislation has to demonstrate such compatibility, shows that the UK is yet again confronted by the aquis, must adapt to it and continue to accept it. We will not be waving it goodbye anytime soon.